Marshall, C.J. . . . This brings us to the great question
in the cause: Is the act of the legislature of Missouri repugnant
to the constitution of the United States?

The counsel for the plaintiffs in error maintain, that it
is repugnant to the constitution, because its object is the
emission of bills of credit contrary to the express prohibition
contained in the tenth section of the first article.

The act under the authority of which the certificates
loaned to the plaintiffs in error were issued, was passed on
the 26th of June, 1821, and is entitled "an act for the establishment
of loan offices." The provisions that are material
to the present inquiry, are comprehended in the
third, thirteenth, fifteenth, sixteenth, twenty-third and
twenty-fourth sections of the act, which are in these words:

Section the third enacts: "that the auditor of public accounts
and treasurer, under the direction of the governor,
shall, and they are hereby required to issue certificates,
signed by the said auditor and treasurer, to the amount of
two hundred thousand dollars, of denominations not exceeding
ten dollars, nor less than fifty cents (to bear such
devices as they may deem the most safe), in the following
form, to wit: "This certificate shall be receivable at the
treasury, or any of the loan offices of the state of Missouri,
in the discharge of taxes or debts due to the state, for the
sum of $------, with interest for the same, at the rate of
two per centum per annum from this date, the ------ day
of ------ 182."

The thirteenth section declares: "that the certificates of
the said loan office shall be receivable at the treasury of
the state, and by all tax gatherers and other public officers,
in payment of taxes or other moneys now due to the state
or to any county or town therein, and the said certificates
shall also be received by all officers civil and military in the
state, in the discharge of salaries and fees of office."

The fifteenth section provides: "that the commissioners
of the said loan offices shall have power to make loans of
the said certificates, to citizens of this state, residing within
their respective districts only, and in each district a proportion
shall be loaned to the citizens of each county
therein, according to the number thereof," &c.

Section sixteenth. "That the said commissioners of each
of the said offices are further authorised to make loans on
personal securities by them deemed good and sufficient,
for sums less than two hundred dollars; which securities
shall be jointly and severally bound for the payment of the
amount so loaned, with interest thereon," &c.

Section twenty-third. "That the general assembly shall,
as soon as may be, cause the salt springs and lands attached
thereto, given by Congress to this state, to be leased
out, and it shall always be the fundamental condition in
such leases, that the lessee or lessees shall receive the certificates
hereby required to be issued, in payment for salt,
at a price not exceeding that which may be prescribed by
law: and all the proceeds of the said salt springs, the interest
accruing to the state, and all estates purchased by officers
of the said several offices under the provisions of this
act, and all the debts now due or hereafter to be due to
this state; are hereby pledged and constituted a fund for
the redemption of the certificates hereby required to be
issued, and the faith of the state is hereby also pledged for
the same purpose."

Section twenty-fourth. "That it shall be the duty of the
said auditor and treasurer to withdraw annually from
circulation, one-tenth part of the certificates which are
hereby required to be issued," &c.

The clause in the constitution which this act is supposed
to violate is in these words: "No state shall" "emit bills of
credit."

What is a bill of credit? What did the constitution mean
to forbid?

In its enlarged, and perhaps its literal sense, the term
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"bill of credit" may comprehend any instrument by which
a state engages to pay money at a future day; thus including
a certificate given for money borrowed. But the language
of the constitution itself, and the mischief to be prevented,
which we know from the history of our country,
equally limit the interpretation of the terms. The word
"emit" is never employed in describing those contracts by
which a state binds itself to pay money at a future day for
services actually received, or for money borrowed for
present use; nor are instruments executed for such purposes,
in common language, denominated "bills of credit."
To "emit bills of credit," conveys to the mind the idea of
issuing paper intended to circulate through the community
for its ordinary purposes, as money, which paper is
redeemable at a future day. This is the sense in which the
terms have been always understood.

At a very early period of our colonial history, the attempt
to supply the want of the precious metals by a paper
medium was made to a considerable extent; and the bills
emitted for this purpose have been frequently denominated
bills of credit. During the war of our revolution, we
were driven to this expedient; and necessity compelled us
to use it to a most fearful extent. The term has acquired
an appropriate meaning; and "bills of credit" signify a paper
medium, intended to circulate between individuals,
and between government and individuals, for the ordinary
purposes of society. Such a medium has been always liable
to considerable fluctuation. Its value is continually changing;
and these changes, often great and sudden, expose
individuals to immense loss, are the sources of ruinous
speculations, and destroy all confidence between man and
man. To cut up this mischief by the roots, a mischief which
was felt through the United States, and which deeply affected
the interest and prosperity of all; the people declared
in their constitution, that no state should emit bills
of credit. If the prohibition means any thing, if the words
are not empty sounds, it must comprehend the emission
of any paper medium, by a state government, for the purpose
of common circulation.

What is the character of the certificates issued by authority
of the act under consideration? What office are
they to perform? Certificates signed by the auditor and
treasurer of the state, are to be issued by those officers to
the amount of two hundred thousand dollars, of denominations
not exceeding ten dollars, nor less than fifty cents.
The paper purports on its face to be receivable at the treasury,
or at any loan office of the state of Missouri, in discharge
of taxes or debts due to the state.

The law makes them receivable in discharge of all taxes,
or debts due to the state, or any county or town therein;
and of all salaries and fees of office, to all officers civil and
military within the state; and for salt sold by the lessees of
the public salt works. It also pledges the faith and funds
of the state for their redemption.

It seems impossible to doubt the intention of the legislature
in passing this act, or to mistake the character of
these certificates, or the office they were to perform. The
denominations of the bills, from ten dollars to fifty cents,
fitted them for the purpose of ordinary circulation; and
their reception in payment of taxes, and debts to the government
and to corporations, and of salaries and fees,
would give them currency. They were to be put into circulation,
that is, emitted by the government. In addition
to all these evidences of an intention to make these certificates
the ordinary circulating medium of the country, the
law speaks of them in this character; and directs the auditor
and treasurer to withdraw annually one-tenth of them
from circulation. Had they been termed "bills of credit,"
instead of "certificates," nothing would have been wanting
to bring them within the prohibitory words of the constitution.

And can this make any real difference? Is the proposition
to be maintained, that the constitution meant to prohibit
names and not things? That a very important act, big
with great and ruinous mischief which is expressly forbidden
by words most appropriate for its description; may be
performed by the substitution of a name? That the constitution,
in one of its most important provisions, may be
openly evaded by giving a new name to an old thing? We
cannot think so. We think the certificates emitted under
the authority of this act, are as entirely bills of credit, as if
they had been so denominated in the act itself.

But it is contended, that though these certificates should
be deemed bills of credit, according to the common acceptation
of the term, they are not so in the sense of the constitution;
because they are not made a legal tender.

The constitution itself furnishes no countenance to this
distinction. The prohibition is general. It extends to all
bills of credit, not to bills of a particular description. That
tribunal must be bold indeed, which, without the aid of
other explanatory words, could venture on this construction.
It is the less admissible in this case, because the same
clause of the constitution contains a substantive prohibition
to the enactment of tender laws. The constitution,
therefore, considers the emission of bills of credit, and the
enactment of tender laws, as distinct operations, independent
of each other, which may be separately performed.
Both are forbidden. To sustain the one, because it is not
also the other; to say that bills of credit may be emitted, if
they be not made a tender in payment of debts; is, in effect,
to expunge that distinct independent prohibition, and
to read the clause as if it had been entirely omitted. We
are not at liberty to do this.

The history of paper money has been referred to, for
the purpose of showing that its great mischief consists in
being made a tender; and that therefore the general words
of the constitution may be restrained to a particular intent.

Was it even true, that the evils of paper money resulted
solely from the quality of its being made a tender, this
Court would not feel itself authorized to disregard the
plain meaning of words, in search of a conjectured intent
to which we are not conducted by the language of any part
of the instrument. But we do not think that the history of
our country proves either, that being made a tender in
payment of debts, is an essential quality of bills of credit,
or the only mischief resulting from them. It may, indeed,
be the most pernicious; but that will not authorise a Court
to convert a general into a particular prohibition.

We learn from Hutchinson's History of Massachusetts,
vol. 1, p. 402, that bills of credit were emitted for the first
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time in that colony in 1690. An army returning unexpectedly
from an expedition against Canada, which had
proved as disastrous as the plan was magnificent, found
the government totally unprepared to meet their claims.
Bills of credit were resorted to, for relief from this embarrassment.
They do not appear to have been made a tender;
but they were not on that account the less bills of
credit, nor were they absolutely harmless. The emission,
however, not being considerable, and the bills being soon
redeemed, the experiment would have been productive of
not much mischief, had it not been followed by repeated
emissions to a much larger amount. The subsequent history
of Massachusetts abounds with proofs of the evils with
which paper money is fraught, whether it be or be not a
legal tender.

Paper money was also issued in other colonies, both in
the north and south; and whether made a tender or not,
was productive of evils in proportion to the quantity emitted.
In the war which commenced in America in 1755,
Virginia issued paper money at several successive sessions,
under the appellation of treasury notes. This was made a
tender. Emissions were afterwards made in 1769, in 1771,
and in 1773. These were not made a tender; but they circulated
together; were equally bills of credit; and were
productive of the same effects. In 1775 a considerable
emission was made for the purposes of the war. The bills
were declared to be current, but were not made a tender.
In 1776, an additional emission was made, and the bills
were declared to be a tender. The bills of 1775 and 1776
circulated together; were equally bills of credit; and were
productive of the same consequences.

Congress emitted bills of credit to a large amount, and
did not, perhaps could not, make them a legal tender.
This power resided in the states. In May, 1777, the legislature
of Virginia passed an act for the first time making
the bills of credit issued under the authority of Congress a
tender so far as to extinguish interest. It was not until
March, 1781, that Virginia passed an act making all the
bills of credit which had been emitted by Congress, and all
which had been emitted by the state, a legal tender in payment
of debts. Yet they were in every sense of the word
bills of credit, previous to that time; and were productive
of all the consequences of paper money. We cannot then
assent to the proposition, that the history of our country
furnishes any just argument in favour of that restricted
construction of the constitution for which the counsel for
the defendant in error contends.

The certificates for which this note was given, being in
truth "bills of credit" in the sense of the constitution, we
are brought to the inquiry:

Is the note valid of which they form the consideration?

It has been long settled, that a promise made in consideration
of an act which is forbidden by law is void. It will
not be questioned, that an act forbidden by the constitution
of the United States, which is the supreme law, is
against law. Now the constitution forbids a state to "emit
bills of credit." The loan of these certificates is the very act
which is forbidden. It is not the making of them while they
lie in the loan offices; but the issuing of them, the putting
them into circulation, which is the act of emission; the act
that is forbidden by the constitution. The consideration of
this note is the emission of bills of credit by the state. The
very act which constitutes the consideration, is the act of
emitting bills of credit, in the mode prescribed by the law
of Missouri; which act is prohibited by the constitution of
the United States.

Cases which we cannot distinguish from this in principle,
have been decided in State Courts of great respectability;
and in this Court. In the case of the Springfield
Bank vs. Merrick et al., 14 Mass. Rep. 322, a note was
made payable in certain bills, the loaning or negotiating of
which was prohibited by statute, inflicting a penalty for its
violation. The note was held to be void. Had this note been
made in consideration of these bills, instead of being made
payable in them, it would not have been less repugnant to
the statute; and would consequently have been equally
void.

In Hunt vs. Knickerbocker, 5 Johns. Rep. 327, it was
decided that an agreement for the sale of tickets in a lottery,
not authorised by the legislature of the state, although
instituted under the authority of the government
of another state, is contrary to the spirit and policy of the
law, and void. The consideration on which the agreement
was founded being illegal, the agreement was void. The
books, both of Massachusetts and New York, abound with
cases to the same effect. They turn upon the question
whether the particular case is within the principle, not on
the principle itself. It has never been doubted, that a note
given on a consideration which is prohibited by law, is
void. Had the issuing or circulation of certificates of this
or of any other description been prohibited by a statute of
Missouri, could a suit have been sustained in the Courts of
that state, on a note given in consideration of the prohibited
certificates? If it could not, are the prohibitions of the
constitution to be held less sacred than those of a state law?

It had been determined, independently of the acts of
Congress on that subject, that sailing under the license of
an enemy is illegal. Patton vs. Nicholson, 3 Wheat. 204,
was a suit brought in one of the Courts of this district on
a note given by Nicholson to Patton, both citizens of the
United States, for a British license. The United States were
then at war with Great Britain; but the license was procured
without any intercourse with the enemy. The judgment
of the Circuit Court was in favour of the defendant;
and the plaintiff sued out a writ of error. The counsel for
the defendant in error was stopped, the Court declaring
that the use of a license from the enemy being unlawful,
one citizen had no right to purchase from or sell to another
such a license, to be used on board an American
vessel. The consideration for which the note was given
being unlawful, it followed of course that the note was
void.

A majority of the Court feels constrained to say that the
consideration on which the note in this case was given, is
against the highest law of the land, and that the note itself
is utterly void. In rendering judgment for the plaintiff, the
Court for the state of Missouri decided in favour of the
validity of a law which is repugnant to the constitution of
the United States.

In the argument, we have been reminded by one side of
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the dignity of a sovereign state; of the humiliation of her
submitting herself to this tribunal; of the dangers which
may result from inflicting a wound on that dignity: by the
other, of the still superior dignity of the people of the
United States; who have spoken their will, in terms which
we cannot misunderstand.

To these admonitions, we can only answer: that if the
exercise of that jurisdiction which has been imposed upon
us by the constitution and laws of the United States, shall
be calculated to bring on those dangers which have been
indicated: or if it shall be indispensable to the preservation
of the union, and consequently of the independence and
liberty of these states: these are considerations which address
themselves to those departments which may with
perfect propriety be influenced by them. This department
can listen only to the mandates of law; and can tread only
that path which is marked out by duty.

The judgment of the Supreme Court of the state of Missouri
for the first judicial district is reversed; and the cause
remanded, with directions to enter judgment for the defendants.

Mr. Justice Johnson. . . . This leads us to the main
question: "Was this an emission of bills of credit in the
sense of the constitution?" And here the difficulty which
presents itself is to determine whether it was a loan or an
emission of paper money; or, perhaps, whether it was not
an emission of paper money, under the disguise of a loan.
There cannot be a doubt that this latter view of the subject
must always be examined; for that which it is not permitted
to do directly, cannot be legalized by any change of
names or forms. Acts done "in fraudem legis," are acts in
violation of law.

The great difficulty, as it is here, must ever be to determine,
in each case, whether it be a loan, or an emission of
bills of credit. That the states have an unlimited power to
effect the one, and are divested of power to do the other,
are propositions equally unquestionable; but where to
draw the discriminating line is the great difficulty. I fear it
is an insuperable difficulty.

The terms, "bills of credit," are in themselves vague and
general, and, at the present day, almost dismissed from
our language. It is then only by resorting to the nomenclature
of the day of the constitution, that we can hope to get
at the idea which the framers of the constitution attached
to it. The quotation from Hutchinson's History of Massachusetts,
therefore, was a proper one for this purpose; inasmuch
as the sense in which a word is used, by a distinguished
historian, and a man in public life in our own
country, not long before the revolution, furnishes a satisfactory
criterion for a definition. It is there used as synonymous
with paper money; and we will find it distinctly
used in the same sense by the first Congress which met
under the present constitution.

The whole history and legislation of the time prove that,
by bills of credit, the framers of the constitution meant
paper money, with reference to that which had been used
in the states from the commencement of the century,
down to the time when it ceased to pass, before reduced
to its innate worthlessness.

It was contended, in argument, for the defendant in error,
that it was essential to the description of bills of credit
in the sense of the constitution, that they should be made
a lawful tender. But his own quotations negative that idea;
and the constitution does the same, in the general prohibition
in the states to make any thing but gold or silver a
lengal tender. If, however, it were otherwise, it would
hardly avail him here, since these certificates were, as to
their officers' salaries, declared a legal tender.

The great end and object of this restriction on the
power of the states, will furnish the best definition of the
terms under consideration. The whole was intended to exclude
every thing from use, as a circulating medium, except
gold and silver; and to give to the United States the
exclusive control over the coining and valuing of the metallic
medium. That the real dollar may represent property,
and not the shadow of it.

Now, if a state were to pass a law declaring that this
representative of money shall be issued by its officers, this
would be a palpable and tangible case; and we could not
hesitate to declare such a law, and every contract entered
into on the issue of such paper, purporting a promise to
return the sum borrowed, to be a mere nullity. But suppose
a state enacts a law authorising her officers to borrow
a hundred thousand dollars, and to give in lieu thereof
certificates of one hundred dollars, each expressing an acknowledgement
of the debt; it is presumed there could be
no objection to this. Then suppose that the next year she
authorises these certificates to be broken up into ten, five,
and even one dollar bills. Where can be the objection to
this? And if, at the institution of the loan, the individual
had given for the script his note at twelve months, instead
of paying the cash; it would be but doing in another form
what was here done in Missouri; and what is often done,
in principle, where the loan is not required to be paid immediately
in cash.

Pursuing the scrutiny farther, and with a view to bringing
it as close home to the present case as possible: a state
having exhausted its treasury, proposes to anticipate its
taxes for one, two or three years; its citizens, or others,
being willing to aid it, give their notes payable at sixty
days, and receive the script of the state at a premium, for
the advance of their credit, which enables the state, by discounting
these notes, to realise the cash. There could be
no objection to this negotiation; and their script being by
contract to be receivable in taxes, nothing would be more
natural than to break it up into small parcels in order to
adapt it to the payment of taxes. And if in this state it
should be thrown into circulation, by passing into the
hands of those who would want it to meet their taxes, I
see nothing in this that could amount to a violation of the
constitution. Thus far the transaction partakes of the distinctive
features of a loan; and yet it cannot be denied that
its adaptation to the payment of taxes does give it one
characteristic of a circulating medium. And another point
of similitude, if not of identity, is the provision for forcing
the receipt of it upon those to whom the state had incurred
the obligation to pay money.

The result is, that these certificates are of a truly amphibious
character; but what then should be the course of
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this Court? My conclusion is, that, as it is a doubtful case,
for that reason we are bound to pronounce it innocent. It
does indeed approach as near to a violation of the constitution
as it can well go, without violating its prohibition;
but it is in the exercise of an unquestionable right, although
in rather a questionable form; and I am bound to
believe that it was done in good faith, until the contrary
shall more clearly appear.

Believing it then a candid exercise of the power of borrowing,
I feel myself at liberty to go further, and briefly to
suggest two points, on which these bills vary from the distinctive
features of the paper money of the revolution.

1. On the face of them they bear an interest, and for
that reason vary in value every moment of their existence:
this disqualifies them for the uses and purposes of a circulating
medium; which the universal consent of mankind
declares should be of an uniform and unchanging value,
otherwise it must be the subject of exchange, and not the
medium.

2. All the paper medium of the revolution consisted of
promises to pay. This is a promise to receive, and to receive
in payment of debts and taxes due the state. This is
not an immaterial distinction; for the objection to a mere
paper medium is, that its value depends upon mere national
faith. But this certainly has a better dependence; the
public debtor who purchases it may tender it in payment;
and upon a suit brought to recover against him, the constitution
contains another provision to which he may have
recourse. As far as the feeble powers of this Court extend,
he would be secured (if he could ever need security) from
a violation of his contracts. This approximates them to bills
on a fund; and a fund not to be withdrawn by a law of the
state.

Upon the whole, I am of opinion that the judgment of
the State Court should be affirmed.